Постановление Европейского суда по правам человека от 28.05.2009 «Дело Хумайдов и Хумайдов (Khumaydov and Khumaydov) против России» [англ.]

s caused by the commission of the crime itself.
130. Furthermore, in the absence of a finding of State responsibility for Khava Magomadova's disappearance, the Court is not persuaded that the investigating authorities' conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicants mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, among other authorities, Cruz Varas and Others v. Sweden, 20 March 1991, § 83, Series A No. 201).
131. It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. Alleged violation of Article 5 of the Convention

132. The applicants further stated that Khava Magomadova had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

A. The parties' submissions

133. In the Government's opinion, no evidence had been obtained by the investigators to confirm that Khava Magomadova had been deprived of her liberty by State agents in breach of the guarantees set out in Article 5 of the Convention.
134. The applicants reiterated their complaint.

B. The Court's assessment

135. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see {Cicek} v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).
136. Nevertheless, the Court has not found it established "beyond reasonable doubt" that Khava Magomadova was arrested by Russian servicemen (see paragraph 105 above). Nor is there any basis to presume that the missing person was ever placed in unacknowledged detention under the control of State agents. In such circumstances the respondent State cannot be held liable for the alleged violation of Khava Magomadova's rights guaranteed by Article 5 of the Convention.
137. The Court therefore considers that this part of the application should be dismissed



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